HUD-5370 General Conditions for Construction Contract - Public Ho
Public Housing Capital Fund Program
5370
Public Housing Capital Fund Program
OMB: 2577-0157
General
Conditions for Construction Public Housing Programs
U.S.
Department of Housing and Urban
Contracts
Development
-
Office
of Public and Indian Housing OMB
Approval No. 2577-0157 (exp. 1/31/2017)
Applicability.
This form is applicable to any
construction/development
contract greater than $100,000.
This
form includes those clauses required by OMB's common rule on grantee
procurement, implemented at HUD in 24 CFR 85.36, and those
requirements set forth in Section 3 of the Housing and Urban
Development Act of 1968 and its amendment by the Housing and
Community Development Act of
1992,
implemented by HUD at 24 CFR Part 135. The form is required for
construction contracts
awarded
by Public Housing Agencies (PHAs).
The
form is used by Housing Authorities in solicitations to provide
necessary contract clauses. If the form were not used, HAs would be
unable
to enforce their contracts.
Public
reporting burden for this collection of information is estimated to
average 1.0 hours per response, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Responses to the collection of
information are required to obtain a benefit or to retain a benefit.
The
information requested does not lend itself to confidentiality.
HUD
may not conduct or sponsor, and a person is not required to respond
to a collection of information unless it displays a currently valid
OMB number.
Table
of Contents
Clause
Page
Clause
Page
1.
Definitions
2
Administrative
Requirements
Construction
Requirements
28.
Contract
Modifications
10
Previous
editions are obsolete Replaces form HUD-5370-A
Page
1 of 19
form
HUD-5370 (1/2014)
14.
Temporary
Buildings and Transportation Materials
6
38.
13
16.
40.
14
18.
Clean
Air and Water
7
42.
15
2.
Contractor’s
Responsibility for Work
2
25.
Contract
Period
9
3.
Architect’s
Duties, Responsibilities and Authority
2
26.
Order
of Precedence
9
4.
Other
Contracts
3
27.
Payments
9
5.
Preconstruction
Conference and Notice to Proceed
3
29.
Changes
10
6.
Construction
Progress Schedule
3
30.
Suspension
of Work
11
7.
Site
Investigation and Conditions Affecting the Work
3
31.
Disputes
11
8.
Differing
Site Conditions
4
32.
Default
11
9.
Specifications
and Drawings for Construction
4
33.
Liquidated
Damages
12
10.
As-Built
Drawings
5
34.
Termination
of Convenience
12
11.
Material
and Workmanship
5
35.
Assignment
of Contract
12
12.
Permits
and Codes
5
36.
Insurance
12
13.
Health,
Safety, and Accident Prevention
6
37.
Subcontracts
13
Subcontracting
with Small and Minority Firms, Women’s Business Enterprise,
and Labor Surplus Area Firms
15.
Availability
and Use of Utility Services
6
39.
Equal
Employment Opportunity
13
Protection
of Existing Vegetation, Structures, Equipment, Utilities, and
Improvements
6
Employment,
Training, and Contracting Opportunities for Low-Income Persons,
Section 3 of the Housing and Urban Development Act of 1968
17.
Temporary
Buildings and Transportation Materials
7
41.
Interest
of Members of Congress
15
Interest
of Members, Officers, or Employees and Former Members, Officers,
or Employees
19.
Energy
Efficiency
7
43.
Limitations
on Payments Made to Influence
15
20.
Inspection
and Acceptance of Construction
7
44.
Royalties
and Patents
15
21.
Use
and Possession Prior to Completion
8
45.
Examination
and Retention of Contractor’s Records
15
22.
Warranty
of Title
8
46.
Labor
Standards-Davis-Bacon and Related Acts
15
23.
Warranty
of Construction
8
47.
Non-Federal
Prevailing Wage Rates
19
24.
Prohibition
Against Liens
9
48.
Procurement
of Recovered Materials
19
1.
Definitions
(a)
The Contractor shall furnish all necessary labor,
(a)
“Architect” means the person or other entity engaged by
the PHA to perform architectural, engineering, design, and other
services related to the work as provided for in the contract. When a
PHA uses an engineer to act in this capacity, the terms “architect”
and “engineer” shall be synonymous. The Architect shall
serve as a technical representative of the Contracting Officer. The
Architect’s
materials,
tools, equipment, and transportation necessary for performance of
the work. The Contractor shall also furnish all necessary water,
heat, light, and power not made available to the Contractor by the
PHA pursuant to the clause entitled Availability and Use of Utility
Services
herein.
(b)
The Contractor shall perform on the site, and with its own
authority
is as set forth elsewhere in this contract.
organization,
work equivalent to at least [ ] (12 percent unless
otherwise indicated) of the total amount of work to be performed
under the order. This percentage may be reduced by a supplemental
agreement to this order if, during performing the work, the
Contractor requests a reduction and the Contracting Officer
determines that the
(b)
“Contract” means the contract entered into between the
PHA
and the Contractor. It includes the forms of Bid, the Bid Bond, the
Performance and Payment Bond or Bonds or other assurance of
completion, the Certifications, Representations, and Other
Statements of Bidders (form HUD-5370), these General Conditions of
the Contract for Construction (form HUD-5370), the applicable wage
rate determinations from the U.S. Department of Labor, any special
conditions included elsewhere in the contract, the specifications,
and drawings. It includes all formal changes to any of those
documents by addendum,
reduction
would be to the advantage of the PHA.
(c)
At all times during performance of this contract and until
the
work is completed and accepted, the Contractor shall directly
superintend the work or assign and have on the work site a competent
superintendent who is satisfactory to the Contracting Officer and
has authority to act for the
Contractor.
change
order, or other modification.
(d)
The Contractor shall be responsible for all damages to
(c)
“Contracting Officer” means the person delegated the au-
persons
or property that occur as a result of the Contractor’s fault
or negligence, and shall take proper
thority
by the PHA to enter into, administer, and/or terminate this contract
and designated as such in writing to the Contractor. The term
includes any successor
safety
and health precautions to protect the work, the workers, the public,
and the property of others. The Contractor shall hold and save the
PHA, its officers and agents, free and harmless from liability of
any nature occasioned by the Contractor’s performance. The
Contractor shall also be responsible for all materials delivered and
work performed until completion and acceptance of the entire work,
except for any completed unit of work which may have been accepted
under the
Contracting
Officer and any duly authorized
representative
of the Contracting Officer also designated in writing. The
Contracting Officer shall be deemed the authorized agent of the PHA
in all dealings with the
Contractor.
(d)
“Contractor” means the person or other entity entering
into
the contract with the PHA to perform all of the work
required
under the contract.
contract.
(e)
“Drawings” means the drawings enumerated in the
(e)
The Contractor shall lay out the work from base lines and
schedule
of drawings contained in the Specifications and as described in the
contract clause entitled Specifications
bench
marks indicated on the drawings and be responsible for all lines,
levels, and measurements of all work executed under the contract.
The Contractor shall verify the figures before laying out the work
and will be held responsible for any error resulting from its
failure to
and
Drawings for Construction herein.
(f)
“HUD” means the United States of America acting through
the Department of Housing and Urban Development including the
Secretary, or any other person designated to act on its behalf. HUD
has agreed, subject to the provisions of an Annual Contributions
Contract (ACC), to provide financial assistance to the PHA, which
includes assistance in financing the work to be performed under this
contract. As defined elsewhere in these General Conditions or the
contract documents, the determination of HUD may be required to
authorize changes in the work or for release of funds to the PHA for
payment to the Contractor. Notwithstanding HUD’s role, nothing
in this contract shall be construed to create any contractual
do
so.
(f)
The Contractor shall confine all operations (including storage of
materials) on PHA premises to areas authorized or approved by the
Contracting Officer.
(g)
The Contractor shall at all times keep the work area,
relationship
between the Contractor and HUD.
including
storage areas, free from accumulations of waste materials. After
completing the work and before final inspection, the Contractor
shall (1) remove from the premises all scaffolding, equipment,
tools, and materials (including rejected materials) that are not the
property of the PHA and all rubbish caused by its work; (2) leave
the work area in a clean, neat, and orderly condition satisfactory
to the Contracting Officer; (3) perform all specified tests; and,
(4) deliver the installation in
(g)
“Project” means the entire project, whether construction
or rehabilitation, the work for which is provided for in
whole
or in part under this contract.
complete
and operating condition.
(h)
“PHA” means the Public Housing Agency organized under
applicable state laws which is a party to this
(h)
The Contractor’s responsibility will terminate when all
contract.
work
has been completed, the final inspection made, and the work accepted
by the Contracting Officer. The Contractor will then be released
from further obligation except as required by the warranties
specified elsewhere in the contract.
(j)
“Specifications” means the written description of the
technical
requirements for construction and includes the criteria and tests
for determining whether the
requirements
are met.
(l)
“Work” means materials, workmanship, and manufacture and
fabrication of components.
3.
Architect’s Duties, Responsibilities, and Authority
2.
Contractor’s Responsibility for Work
(a)
The Architect for this contract, and any successor, shall be
designated in writing by the Contracting Officer.
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editions are obsolete Replaces form HUD-5370-A
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form
HUD-5370 (1/2014)
(b)
The Architect shall serve as the Contracting Officer’s
technical
representative with respect to architectural, engineering, and
design matters related to the work performed under the contract. The
Architect may provide direction on contract performance. Such
direction shall be within the scope of the contract and may not be
of a nature which: (1) institutes additional work outside the scope
of the contract; (2) constitutes a change as defined in the Changes
clause herein; (3) causes an increase or decrease in the cost of the
contract; (4) alters the Construction Progress Schedule; or (5)
changes any of the other express terms or conditions of the
contract.
6.
Construction Progress Schedule
(a)
The Contractor shall, within five days after the work
(c)
The Architect’s duties and responsibilities may include but
commences
on the contract or another period of time determined by the
Contracting Officer, prepare and submit to the Contracting Officer
for approval three copies of a practicable schedule showing the
order in which the Contractor proposes to perform the work, and the
dates on which the Contractor contemplates starting and completing
the several salient features of the work (including acquiring labor,
materials, and equipment). The schedule shall be in the form of a
progress chart of suitable scale to indicate appropriately the
percentage of work scheduled for completion by any given date during
the period. If the Contractor fails to submit a schedule within the
time prescribed, the Contracting Officer may withhold approval of
progress payments or take other remedies under the contract until
the Contractor submits
shall
not be limited to:
(1)
Making periodic visits to the work site, and on the
basis
of his/her on-site inspections, issuing written reports to the PHA
which shall include all observed deficiencies. The Architect shall
file a copy of the report with the Contractor’s designated
representative
at
the site;
the
required schedule.
(2)
Making modifications in drawings and technical
(b)
The Contractor shall enter the actual progress on the chart as
required by the Contracting Officer, and immediately deliver three
copies of the annotated schedule to the Contracting Officer. If the
Contracting Officer determines, upon the basis of inspection
conducted pursuant to the clause entitled Inspection and Acceptance
of Construction, herein that the Contractor is not meeting the
approved schedule, the Contractor shall take steps necessary to
improve its progress, including those that may be required by the
Contracting Officer, without additional cost to the PHA. In this
circumstance, the Contracting Officer may require the Contractor to
increase the number of shifts, overtime operations, days of work,
and/or the amount of construction plant, and to submit for approval
any supplementary schedule or schedules in chart form as the
Contracting Officer deems necessary to demonstrate how the approved
rate of
specifications
and assisting the Contracting Officer in the preparation of change
orders and other contract
modifications
for issuance by the Contracting Officer;
(3)
Reviewing and making recommendations with respect
to
- (i) the Contractor’s construction progress schedules; (ii)
the Contractor’s shop and detailed drawings; (iii) the
machinery, mechanical and other equipment and materials or other
articles proposed for use by the Contractor; and, (iv) the
Contractor’s
price
breakdown and progress payment estimates;
and,
(4)
Assisting in inspections, signing Certificates of
Completion,
and making recommendations with respect to acceptance of work
completed under the contract.
4.
Other Contracts
progress
will be regained.
The
PHA may undertake or award other contracts for additional work at or
near the site of the work under this contract. The Contractor shall
fully cooperate with the other contractors and with PHA employees
and shall carefully adapt scheduling and performing the work under
this contract to accommodate the additional work, heeding any
direction that may be provided by the Contracting Officer. The
Contractor shall not commit or permit any act that will interfere
with the performance of work by any other contractor or by PHA
employees
(c)
Failure of the Contractor to comply with the requirements of the
Contracting Officer under this clause shall be grounds for a
determination by the Contracting Officer that the Contractor is not
prosecuting the work with sufficient diligence to ensure completion
within the time
specified
in the Contract. Upon making this
determination,
the Contracting Officer may terminate the Contractor’s right
to proceed with the work, or any separable part of it, in accordance
with the Default clause of this contract.
7.
Site Investigation and Conditions Affecting the Work
Construction
Requirements
5.
Pre-construction Conference and Notice to Proceed
(a)
The Contractor acknowledges that it has taken steps reasonably
necessary to ascertain the nature and location of the work, and that
it has investigated and satisfied itself as to the general and local
conditions which can affect the work or its cost, including but not
limited to, (1) conditions bearing upon transportation, disposal,
handling, and storage of materials; (2) the availability of labor,
water, electric power, and roads;(3) uncertainties of weather, river
stages, tides, or similar physical conditions at the site; (4) the
conformation and conditions of the ground; and (5) the character of
equipment and facilities needed preliminary to and during work
performance. The Contractor also acknowledges that it has satisfied
itself as to the character, quality, and quantity of surface and
subsurface materials or obstacles to be encountered insofar as this
information is
(a)
Within ten calendar days of contract execution, and prior to the
commencement of work, the Contractor shall attend a preconstruction
conference with representatives of the PHA, its Architect, and other
interested parties convened by the PHA. The conference will serve to
acquaint the participants with the general plan of the construction
operation and all other requirements of the contract. The PHA will
provide the Contractor with the
date,
time, and place of the conference.
(b)
The contractor shall begin work upon receipt of a written
Notice
to Proceed from the Contracting Officer or designee. The Contractor
shall not begin work prior to receiving such notice.
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editions are obsolete Replaces form HUD-5370-A
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form
HUD-5370 (1/2014)
reasonably
ascertainable from an inspection of the site, including all
exploratory work done by the PHA, as well as from the drawings and
specifications made a part of this contract. Any failure of the
Contractor to take the actions described and acknowledged in this
paragraph will not relieve the Contractor from responsibility for
estimating properly the difficulty and cost of successfully
performing the work, or for proceeding to successfully
promptly
submitted to the Contracting Officer, who shall promptly make a
determination in writing. Any adjustment by the Contractor without
such a determination shall be at its own risk and expense. The
Contracting Officer shall furnish from time to time such detailed
drawings and other information as considered necessary, unless
otherwise
provided.
perform
the work without additional expense to the PHA.
(b)
Wherever in the specifications or upon the drawings the words
“directed”, “required”, “ordered”,
“designated”, “prescribed”, or words of like
import are used, it shall be
(b)
The PHA assumes no responsibility for any conclusions
or
interpretations made by the Contractor based on the information made
available by the PHA. Nor does the PHA assume responsibility for any
understanding reached or representation made concerning conditions
which can affect the work by any of its officers or agents before
the execution of this contract, unless that understanding or
representation is expressly stated in this contract.
understood
that the “direction”, “requirement”,
“order”, “designation”, or “prescription”,
of the Contracting Officer
is
intended and similarly the words “approved”,
“acceptable”, “satisfactory”, or words of
like import shall
mean
“approved
by”, or
“acceptable
to”, or “satisfactory
to”
the Contracting Officer, unless otherwise expressly
stated.
(c)
Where “ shown” “ indicated”, “
detailed”, or words
as
,as
as
8.
Differing Site Conditions
of
similar import are used, it shall be understood that the reference
is made to the drawings accompanying this contract unless stated
otherwise. The word “provided” as used herein shall be
understood to mean “provide complete in place” that is
“furnished and installed”.
(a)
The Contractor shall promptly, and before the conditions are
disturbed, give a written notice to the Contracting Officer of (1)
subsurface or latent physical conditions at the site which differ
materially from those indicated in this contract, or (2) unknown
physical conditions at the site(s), of an unusual nature, which
differ materially from those ordinarily encountered and generally
recognized as inhering in work of the character provided for in the
(d)
“Shop drawings” means drawings, submitted to the PHA
contract.
by
the Contractor, subcontractor, or any lower tier subcontractor,
showing in detail (1) the proposed fabrication and assembly of
structural elements and (2) the installation (i.e., form, fit, and
attachment details) of materials of equipment. It includes drawings,
diagrams, layouts, schematics, descriptive literature,
illustrations, schedules, performance and test data, and similar
materials furnished by the Contractor to explain in detail specific
portions of the work required by the contract. The PHA may
duplicate, use, and disclose in any manner and for any purpose shop
drawings delivered under this
(b)
The Contracting Officer shall investigate the site
conditions
promptly after receiving the notice. Work shall not proceed at the
affected site, except at the Contractor’s risk, until the
Contracting Officer has provided written instructions to the
Contractor. If the conditions do materially so differ and cause an
increase or decrease in the Contractor’s cost of, or the time
required for, performing any part of the work under this contract,
whether or not changed as a result of the conditions, the Contractor
shall file a claim in writing to the PHA within ten days after
receipt of such instructions and, in any event, before proceeding
with the work. An equitable adjustment in the contract price, the
delivery schedule, or both shall be made under this clause and
contract.
(e)
If this contract requires shop drawings, the Contractor
the
contract modified in writing accordingly.
shall
coordinate all such drawings, and review them for accuracy,
completeness, and compliance with other contract requirements and
shall indicate its approval thereon as evidence of such coordination
and review. Shop drawings submitted to the Contracting Officer
without evidence of the Contractor’s approval may be returned
for resubmission. The Contracting Officer will indicate an approval
or disapproval of the shop drawings and if not approved as submitted
shall indicate the PHA’s reasons therefore. Any work done
before such approval shall be at the Contractor’s risk.
Approval by the Contracting Officer shall not relieve the Contractor
from responsibility for any errors or omissions in such drawings,
nor from responsibility for complying with the requirements of this
contract, except with respect to variations described and approved
in accordance with (f)
(c)
No request by the Contractor for an equitable adjustment
to
the contract under this clause shall be allowed, unless the
Contractor has given the written notice required; provided, that the
time prescribed in (a) above for giving written notice may be
extended by the Contracting
Officer.
(d)
No request by the Contractor for an equitable adjustment
to
the contract for differing site conditions shall be allowed if made
after final payment under this contract.
below.
9.
Specifications and Drawings for Construction
(f)
If shop drawings show variations from the contract requirements, the
Contractor shall describe such variations in writing, separate from
the drawings, at the time of submission. If the Architect approves
any such variation and the Contracting Officer concurs, the
(a)
The Contractor shall keep on the work site a copy of the
drawings
and specifications and shall at all times give the Contracting
Officer access thereto. Anything mentioned in the specifications and
not shown on the drawings, or shown on the drawings and not
mentioned in the specifications, shall be of like effect as if shown
or mentioned in both. In case of difference between drawings and
specifications, the specifications shall govern. In case of
discrepancy in the figures, in the drawings, or in the
specifications, the matter shall be
Contracting
Officer shall issue an appropriate
modification
to the contract, except that, if the variation is minor or does not
involve a change in price or in time of performance, a modification
need not be issued.
(g)
It shall be the responsibility of the Contractor to make
timely
requests of the PHA for such large scale and full size drawings,
color schemes, and other additional information, not already in his
possession, which shall be
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editions are obsolete Replaces form HUD-5370-A
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HUD-5370 (1/2014)
required
in the planning and production of the work. Such requests may be
submitted as the need arises, but each such request shall be filed
in ample time to permit appropriate action to be taken by all
parties involved so
machinery
and mechanical and other equipment. When required by this contract
or by the Contracting Officer, the Contractor shall also obtain the
Contracting Officer’s approval of the material or articles
which the Contractor contemplates incorporating into the work. When
requesting approval, the Contractor shall provide full information
concerning the material or articles. Machinery, equipment, material,
and articles that do not have the required approval shall be
installed or used at the risk
as
to avoid delay.
(h)
The Contractor shall submit to the Contracting Officer for approval
four copies (unless otherwise indicated) of all shop drawings as
called for under the various headings of these specifications. Three
sets (unless otherwise indicated) of all shop drawings, will be
retained by the PHA and one set will be returned to the Contractor.
As required by the Contracting Officer, the Contractor, upon
completing the work under this contract, shall furnish a complete
set of all shop drawings as finally approved. These drawings shall
show all changes and revisions
of
subsequent rejection.
(2)
When required by the specifications or the
Contracting
Officer, the Contractor shall submit appropriately marked samples
(and certificates related to them) for approval at the Contractor’s
made
up to the time the work is completed and accepted.
expense,
with all shipping charges prepaid. The Contractor shall label, or
otherwise properly mark on the container, the material or product
represented, its place of origin, the name of the producer, the
Contractor’s name, and the identification of the construction
project for which the material or product
(i)
This clause shall be included in all subcontracts at any tier. It
shall be the responsibility of the Contractor to ensure that all
shop drawings prepared by subcontractors are submitted to the
Contracting Officer.
10.
As-Built Drawings
is
intended to be used.
(a)
“As-built drawings,” as used in this clause, means
(3)
Certificates shall be submitted in triplicate, describing each
sample submitted for approval and certifying that the material,
equipment or accessory complies with contract requirements. The
certificates shall include the name and brand of the product, name
of manufacturer, and the location where produced.
drawings
submitted by the Contractor or subcontractor at any tier to show the
construction of a particular structure or work as actually completed
under the contract. “As-built drawings” shall be
synonymous with “Record
drawings.”
(4)
Approval of a sample shall not constitute a waiver of
(b)
As required by the Contracting Officer, the Contractor
the
PHA right to demand full compliance with contract
shall
provide the Contracting Officer accurate information to be used in
the preparation of permanent as-built drawings. For this purpose,
the Contractor shall record on one set of contract drawings all
changes from the installations originally indicated, and record
final locations of underground lines by depth from finish grade and
by accurate horizontal offset distances to permanent surface
improvements such as buildings, curbs, or edges of
been
approved.
walks.
(5)
Wherever materials are required to comply with recognized standards
or specifications, such specifications shall be accepted as
establishing the technical qualities and testing methods, but shall
not govern the number of tests required to be made nor modify other
contract requirements. The Contracting Officer may require
laboratory test reports on items submitted for approval or may
approve materials on the basis of data submitted in certificates
with samples. Check tests will be made on materials delivered for
use only as frequently as the Contracting Officer determines
necessary to insure compliance of materials with the specifications.
The Contractor will assume all costs of retesting materials which
fail to meet contract requirements and/or testing materials offered
in substitution for those found deficient.
(c)
This clause shall be included in all subcontracts at any tier. It
shall be the responsibility of the Contractor to
ensure
that all as-built drawings prepared by
subcontractors
are submitted to the Contracting Officer.
11.
Material and Workmanship
(a)
All equipment, material, and articles furnished under this
contract
shall be new and of the most suitable grade for the purpose
intended, unless otherwise specifically provided in this contract.
References in the contract to equipment, material, articles, or
patented processes by trade name, make, or catalog number, shall be
regarded as establishing a standard of quality and shall not be
construed as limiting competition. The Contractor may, at its
option, use any equipment, material, article, or process that, in
the judgment of, and as approved by the Contracting Officer, is
equal to that named in the specifications, unless otherwise
specifically provided in
(6)
After approval, samples will be kept in the Project
office
until completion of work. They may be built into the work after a
substantial quantity of the materials
they
represent has been built in and accepted.
(c)
Requirements concerning lead-based paint. The
Contractor
shall comply with the requirements concerning lead-based paint
contained in the Lead-Based Paint Poisoning Prevention Act (42
U.S.C. 4821-4846) as implemented by 24 CFR Part 35.
this
contract.
(b)
Approval of equipment and materials.
12.
Permits and Codes
(1)
The Contractor shall obtain the Contracting Officer’s
approval
of the machinery and mechanical and other equipment to be
incorporated into the work. When requesting approval, the Contractor
shall furnish to the Contracting Officer the name of the
manufacturer, the model number, and other information concerning the
performance, capacity, nature, and rating of the
(a)
The Contractor shall give all notices and comply with all
applicable
laws, ordinances, codes, rules and regulations. Notwithstanding the
requirement of the Contractor to comply with the drawings and
specifications in the contract, all work installed shall comply with
all applicable codes and regulations as amended by any
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editions are obsolete Replaces form HUD-5370-A
Page
5 of 19
form
HUD-5370 (1/2014)
requirements.
Materials, equipment and accessories
may be rejected for cause
even though samples have
waivers.
Before installing the work, the Contractor shall examine the
drawings and the specifications for compliance with applicable codes
and regulations bearing on the work and shall immediately report any
discrepancy it may discover to the Contracting Officer.
14.
Temporary Heating
Where
the requirements of the drawings and
The
Contractor shall provide and pay for temporary heating, covering,
and enclosures necessary to properly protect all work and materials
against damage by dampness and cold, to dry out the work, and to
facilitate the completion of the work. Any permanent heating
equipment used shall be turned over to the PHA in the condition and
at the time required by the specifications.
specifications
fail to comply with the applicable code or regulation, the
Contracting Officer shall modify the contract by change order
pursuant to the clause entitled Changes herein to conform to the
code or regulation.
(b)
The Contractor shall secure and pay for all permits, fees, and
licenses necessary for the proper execution and completion of the
work. Where the PHA can arrange for the issuance of all or part of
these permits, fees and licenses, without cost to the Contractor,
the contract amount shall be reduced accordingly.
15.
Availability and Use of Utility Services
(a)
The PHA shall make all reasonably required amounts of
13.
Health, Safety, and Accident Prevention
utilities
available to the Contractor from existing outlets and supplies, as
specified in the contract. Unless otherwise provided in the
contract, the amount of each utility service consumed shall be
charged to or paid for by the Contractor at prevailing rates charged
to the PHA or, where the utility is produced by the PHA, at
reasonable rates determined by the Contracting Officer. The
Contractor shall carefully conserve any utilities furnished
(a)
In performing this contract, the Contractor shall:
(1)
Ensure that no laborer or mechanic shall be required
to
work in surroundings or under working conditions which are
unsanitary, hazardous, or dangerous to his/her health and/or safety
as determined under construction safety and health standards
promulgated
without
charge.
(b)
The Contractor, at its expense and in a manner
by
the Secretary of Labor by regulation;
satisfactory
to the Contracting Officer, shall install and maintain all necessary
temporary connections and distribution lines, and all meters
required to measure the amount of each utility used for the purpose
of determining charges. Before final acceptance of the work by the
PHA, the Contractor shall remove all the temporary connections,
distribution lines, meters, and associated paraphernalia.
(2)
Protect the lives, health, and safety of other persons;
(3)
Prevent damage to property, materials, supplies, and
equipment;
and,
(4)
Avoid work interruptions.
(b)
For these purposes, the Contractor shall:
(1)
Comply with regulations and standards issued by the Secretary of
Labor at 29 CFR Part 1926. Failure to comply may result in
imposition of sanctions pursuant to the Contract Work Hours and
Safety Standards Act (Public Law 91-54, 83 Stat. 96), 40 U.S.C. 3701
et
16.
Protection of Existing Vegetation, Structures, Equipment, Utilities,
and Improvements
seq.;
and
(a)
The Contractor shall preserve and protect all structures,
(2)
Include the terms of this clause in every subcontract
equipment,
and vegetation (such as trees, shrubs, and grass) on or adjacent to
the work site, which are not to be removed under this contract, and
which do not unreasonably interfere with the work required under
this
so
that such terms will be binding on each
subcontractor.
(c)
The Contractor shall maintain an accurate record of exposure data on
all accidents incident to work performed under this contract
resulting in death, traumatic injury, occupational disease, or
damage to property, materials, supplies, or equipment, and shall
report this data in the manner prescribed by 29 CFR Part
contract.
(b)
The Contractor shall only remove trees when specifically
1904.
authorized
to do so, and shall avoid damaging vegetation that will remain in
place. If any limbs or branches of trees are broken during
performance of this contract, or by the careless operation of
equipment, or by workmen, the Contractor shall trim those limbs or
branches with a clean cut and paint the cut with a tree-pruning
compound as
(d)
The Contracting Officer shall notify the Contractor of any
noncompliance with these requirements and of the corrective action
required. This notice, when delivered to the Contractor or the
Contractor’s representative at the site of the work, shall be
deemed sufficient notice of the noncompliance and corrective action
required. After receiving the notice, the Contractor shall
immediately take corrective action. If the Contractor fails or
refuses to take corrective action promptly, the Contracting Officer
may issue an order stopping all or part of the work until
satisfactory corrective action has been taken. The Contractor shall
not base any claim or request for equitable adjustment for
additional time or money on any
directed
by the Contracting Officer.
(c)
The Contractor shall protect from damage all existing
improvements
and utilities (1) at or near the work site and (2) on adjacent
property of a third party, the locations of which are made known to
or should be known by the Contractor. Prior to disturbing the ground
at the construction site, the Contractor shall ensure that all
underground
utility lines are clearly marked.
(d)
The Contractor shall shore up, brace, underpin, secure,
stop
order issued under these circumstances.
and
protect as necessary all foundations and other parts of existing
structures adjacent to, adjoining, and in the vicinity of the site,
which may be affected by the excavations or other operations
connected with the
(e)
The Contractor shall be responsible for its subcontractors’
compliance
with the provisions of this clause. The Contractor shall take such
action with respect to any subcontract as the PHA, the Secretary of
Housing and Urban Development, or the Secretary of Labor shall
direct as a means of enforcing such provisions.
construction
of the project.
(e)
Any equipment temporarily removed as a result of work under this
contract shall be protected, cleaned, and replaced in the same
condition as at the time of award of this contract.
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(f)
New work which connects to existing work shall
The
contactor shall comply with the Clean Air Act, as amended, 42 USC
7401 et seq., the Federal Water Pollution Control Water Act, as
amended, 33 U.S.C. 1251 et seq., and standards issued pursuant
thereto in the facilities in which this contract is to be performed.
correspond
in all respects with that to which it connects and/or be similar to
existing work unless otherwise
required
by the specifications.
(g)
No structural members shall be altered or in any way weakened
without the written authorization of the Contracting Officer, unless
such work is clearly specified
19.
Energy Efficiency
in
the plans or specifications.
(h)
If the removal of the existing work exposes discolored or unfinished
surfaces, or work out of alignment, such surfaces shall be
refinished, or the material replaced as necessary to make the
continuous work uniform and harmonious. This, however, shall not be
construed to require the refinishing or reconstruction of dissimilar
finishes previously exposed, or finished surfaces in good condition,
but in different planes or on different levels when brought together
by the removal of intervening work, unless such refinishing or
reconstruction is
The
Contractor shall comply with mandatory standards and policies
relating to energy efficiency which are contained in the energy
conservation plan issued in compliance with the Energy Policy and
Conservation Act (Pub.L. 94-163) for the State in which the work
under the contract is performed.
20.
Inspection and Acceptance of Construction
(a)
Definitions. As used in this clause -
specified
in the plans or specifications.
“Acceptance”
means the act of an authorized representative of the PHA by which
the PHA approves and assumes ownership of the work performed under
this contract. Acceptance may be partial or complete.
“Inspection”
means examining and testing the work
(i)
The Contractor shall give all required notices to any
adjoining
or adjacent property owner or other party before
the
commencement of any work.
(j)
The Contractor shall indemnify and save harmless the
PHA
from any damages on account of settlement or the loss of lateral
support of adjoining property, any damages from changes in
topography affecting drainage, and from all loss or expense and all
damages for which the PHA may become liable in consequence of such
injury or damage to adjoining and adjacent structures and their
performed
under the contract (including, when
appropriate,
raw materials, equipment, components, and intermediate assemblies)
to determine whether it
conforms
to contract requirements.
premises.
(3)
“Testing” means that element of inspection that
determines the properties or elements, including functional
operation of materials, equipment, or their components, by the
application of established scientific
(k)
The Contractor shall repair any damage to vegetation, structures,
equipment, utilities, or improvements, including those that are the
property of a third party, resulting from failure to comply with the
requirements of this contract or failure to exercise reasonable care
in performing the work. If the Contractor fails or refuses to repair
the damage promptly, the Contracting Officer may have the necessary
work performed and charge the cost to the Contractor.
principles
and procedures.
(b)
The Contractor shall maintain an adequate inspection
system
and perform such inspections as will ensure that the work performed
under the contract conforms to contract requirements. All work is
subject to PHA inspection and test at all places and at all
reasonable times before acceptance to ensure strict compliance with
the
terms of the contract.
(c)
PHA inspections and tests are for the sole benefit of the
17.
Temporary Buildings and Transportation of Materials
PHA
and do not: (1) relieve the Contractor of responsibility for
providing adequate quality control measures; (2) relieve the
Contractor of responsibility for loss or damage of the material
before acceptance; (3) constitute or imply acceptance; or, (4)
affect the continuing rights of the PHA after acceptance of the
(a)
Temporary buildings (e.g., storage sheds, shops, offices, sanitary
facilities) and utilities may be erected by the Contractor only with
the approval of the Contracting Officer and shall be built with
labor and materials furnished by the Contractor without expense to
the PHA. The temporary buildings and utilities shall remain the
property of the Contractor and shall be removed by the Contractor at
its expense upon completion of the work. With the written consent of
the Contracting Officer, the buildings and utilities may be
abandoned and need not
completed
work under paragraph (j) below.
(d)
The presence or absence of the PHA inspector does not
relieve
the Contractor from any contract requirement, nor is the inspector
authorized to change any term or condition of the specifications
without the Contracting Officer’s written authorization. All
instructions and
be
removed.
approvals
with respect to the work shall be given to the
(b)
The Contractor shall, as directed by the Contracting
Contractor
by the Contracting Officer.
Officer,
use only established roadways, or use temporary roadways constructed
by the Contractor when and as authorized by the Contracting Officer.
When materials are transported in prosecuting the work, vehicles
shall not be loaded beyond the loading capacity recommended by the
manufacturer of the vehicle or prescribed by any federal, state, or
local law or regulation. When it is necessary to cross curbs or
sidewalks, the Contractor shall protect them from damage. The
Contractor shall repair or pay for the repair of any damaged curbs,
sidewalks, or roads.
(e)
The Contractor shall promptly furnish, without additional charge,
all facilities, labor, and material reasonably needed for performing
such safe and convenient inspections and tests as may be required by
the Contracting Officer. The PHA may charge to the Contractor any
additional cost of inspection or test when work is not ready at the
time specified by the Contractor for inspection or test, or when
prior rejection makes reinspection or retest necessary. The PHA
shall perform all inspections and tests in a manner that will not
unnecessarily delay the work. Special, full size, and performance
tests shall be performed as described in the contract.
18.
Clean Air and Water
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(f)
The PHA may conduct routine inspections of the
occupied
without proper remuneration therefore. If prior possession or use by
the PHA delays the progress of the work or causes additional expense
to the Contractor, an equitable adjustment shall be made in the
contract price or the time of completion, and the contract shall be
modified in writing accordingly.
construction
site on a daily basis.
(g)
The Contractor shall, without charge, replace or correct work found
by the PHA not to conform to contract requirements, unless the PHA
decides that it is in its interest to accept the work with an
appropriate adjustment in contract price. The Contractor shall
promptly segregate and remove rejected material from
22.
Warranty of Title
the
premises.
(h)
If the Contractor does not promptly replace or correct
The
Contractor warrants good title to all materials, supplies, and
equipment incorporated in the work and agrees to deliver the
premises together with all improvements thereon free from any
claims, liens or charges, and agrees further that neither it nor any
other person, firm or corporation shall have any right to a lien
upon the premises or anything appurtenant thereto.
rejected
work, the PHA may (1) by contract or otherwise, replace or correct
the work and charge the cost to the Contractor, or (2) terminate for
default the Contractor’s
right
to proceed.
(i)
If any work requiring inspection is covered up without ap-
proval
of the PHA, it must, if requested by the Contracting Officer, be
uncovered at the expense of the Contractor. If at any time before
final acceptance of the entire work, the PHA considers it necessary
or advisable, to examine work already completed by removing or
tearing it out, the Contractor, shall on request, promptly furnish
all necessary facilities, labor, and material. If such work is found
to be defective or nonconforming in any material respect due to the
fault of the Contractor or its subcontractors, the Contractor shall
defray all the expenses of the examination and of satisfactory
reconstruction. If, however, such work is found to meet the
requirements of the contract, the Contracting Officer shall make an
equitable adjustment to cover the cost of the examination and
reconstruction, including, if completion of the work was thereby
delayed, an
23.
Warranty of Construction
(a)
In addition to any other warranties in this contract, the
Contractor
warrants, except as provided in paragraph (j) of this clause, that
work performed under this contract conforms to the contract
requirements and is free of any defect in equipment, material, or
workmanship performed
by
the Contractor or any subcontractor or supplier at any
tier.
This warranty shall continue for a period of
(one
year unless otherwise indicated) from the date of final acceptance
of the work. If the PHA takes possession of any part of the work
before final acceptance, this warranty shall continue for a period
of (one year unless otherwise indicated) from the date that the PHA
takes
extension
of time.
possession.
(j)
The Contractor shall notify the Contracting Officer, in
(b)
The Contractor shall remedy, at the Contractor’s
writing,
as to the date when in its opinion all or a designated portion of
the work will be substantially completed and ready for inspection.
If the Architect determines that the state of preparedness is as
represented, the PHA will promptly arrange for the inspection.
Unless otherwise specified in the contract, the PHA shall accept, as
soon as practicable after completion and inspection, all work
required by the contract or that portion of the work the Contracting
Officer determines and designates can be accepted separately.
Acceptance shall be final and conclusive except for latent defects,
fraud, gross mistakes amounting to fraud, or the PHA’s right
under any warranty or guarantee.
expense,
any failure to conform, or any defect. In addition, the Contractor
shall remedy, at the Contractor’s expense, any damage to
PHA-owned or controlled real or personal property when the damage is
the result of—
(1)
The Contractor’s failure to conform to contract require-
ments;
or
(2)
Any defects of equipment, material, workmanship or
design
furnished by the Contractor.
(c)
The Contractor shall restore any work damaged in
fulfilling
the terms and conditions of this clause. The Contractor’s
warranty with respect to work repaired or
replaced
will run for (one year unless otherwise indicated)
from
the date of repair or replacement.
(d)
The Contracting Officer shall notify the Contractor, in
21.
Use and Possession Prior to Completion
writing,
within a reasonable time after the discovery of
any
failure, defect or damage.
(a)
The PHA shall have the right to take possession of or use any
completed or partially completed part of the work. Before taking
possession of or using any work, the Contracting Officer shall
furnish the Contractor a list of items of work remaining to be
performed or corrected on those portions of the work that the PHA
intends to take possession of or use. However, failure of the
Contracting Officer to list any item of work shall not relieve the
Contractor of responsibility for complying with the terms of the
contract. The PHA’s possession or use shall not be
(e)
If the Contractor fails to remedy any failure, defect, or
damage
within a reasonable time after receipt of notice, the PHA shall have
the right to replace, repair or otherwise remedy the failure,
defect, or damage at the
Contractor’s
expense.
(f)
With respect to all warranties, express or implied, from
subcontractors, manufacturers, or suppliers for work performed and
materials furnished under this contract,
the
Contractor shall:
(1)
Obtain all warranties that would be given in normal
deemed
an acceptance of any work under the contract.
commercial
practice;
(b)
While the PHA has such possession or use, the
(2)
Require all warranties to be executed in writing, for the
Contractor
shall be relieved of the responsibility for (1) the loss of or
damage to the work resulting from the PHA’s possession or use,
notwithstanding the terms of the clause entitled Permits and Codes
herein; (2) all maintenance costs on the areas occupied; and, (3)
furnishing heat, light, power, and water used in the areas
benefit
of the PHA; and,
(3)
Enforce all warranties for the benefit of the PHA.
(g)
In the event the Contractor’s warranty under paragraph
(a)
of this clause has expired, the PHA may bring suit at its own
expense to enforce a subcontractor’s, manufacturer’s or
supplier’s warranty.
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HUD-5370 (1/2014)
(h)
Unless a defect is caused by the negligence of the
basis
for determining progress payments. The breakdown shall be approved
by the Contracting Officer and must be acceptable to HUD. If the
contract covers more than one
Contractor
or subcontractor or supplier at any tier, the Contractor shall not
be liable for the repair of any defect of material or design
furnished by the PHA nor for the repair of any damage that results
from any defect in PHA
project,
the Contractor shall furnish a separate
furnished
material or design.
breakdown
for each. The values and quantities employed in making up this
breakdown are for determining the amount of progress payments and
shall not be construed as a basis for additions to or deductions
from the contract price. The Contractor shall prorate its overhead
and profit
(i)
Notwithstanding any provisions herein to the contrary, the
establishment of the time periods in paragraphs (a) and (c) above
relate only to the specific obligation of the Contractor to correct
the work, and have no relationship to the time within which its
obligation to comply with the contract may be sought to be enforced,
nor to the time within which proceedings may be commenced to
establish the Contractor’s liability with respect to its
obligation other than specifically to correct the work.
over
the construction period of the contract.
(d)
The Contractor shall submit, on forms provided by the
PHA,
periodic estimates showing the value of the work performed during
each period based upon the approved
submitted
not later than
days
in advance of
(j)
This warranty shall not limit the PHA’s rights under the
the
date set for payment and are subject to correction and revision as
required. The estimates must be approved by the Contracting Officer
with the concurrence of the Architect prior to payment. If the
contract covers more than one project, the Contractor shall furnish
a
Inspection
and Acceptance of Construction clause of this contract with respect
to latent defects, gross mistakes or fraud.
24.
Prohibition Against Liens
separate
progress payment estimate for each.
The
Contractor is prohibited from placing a lien on the PHA’s
property. This prohibition shall apply to all subcontractors at any
tier and all materials suppliers.
(e)
Along with each request for progress payments and the required
estimates, the Contractor shall furnish the following certification,
or payment shall not be made: I hereby certify, to the best of my
knowledge and belief,
that:
Administrative
Requirements
(1)
The amounts requested are only for performance in accordance with
the specifications, terms, and
25.
Contract Period
conditions
of the contract;
(2)
Payments to subcontractors and suppliers have been made from
previous payments received under the contract, and timely payments
will be made from the proceeds of the payment covered by this
certification, in accordance with subcontract agreements; and,
this
contract within
calendar
days of the
effective
date of the contract, or within the time schedule established in the
notice to proceed issued by the Contracting Officer.
(3)
This request for progress payments does not include
26.
Order of Provisions
any
amounts which the prime contractor intends to withhold or retain
from a subcontractor or supplier in accordance with the terms and
conditions of the subcontract.
In
the event of a conflict between these General
Conditions
and the Specifications, the General
Conditions
shall prevail. In the event of a conflict between the contract and
any applicable state or local law or regulation, the state or local
law or regulation shall prevail; provided that such state or local
law or regulation does not conflict with, or is less restrictive
than applicable federal law, regulation, or Executive Order. In the
event of such a conflict, applicable federal law, regulation, and
Executive Order shall prevail.
Name:
Title:
Date:
27.
Payments
(f)
Except as otherwise provided in State law, the PHA shall
(a)
The PHA shall pay the Contractor the price as provided in
retain
ten (10) percent of the amount of progress payments until completion
and acceptance of all work under the contract; except, that if upon
completion of 50 percent of the work, the Contracting Officer, after
consulting with the Architect, determines that the Contractor’s
performance and progress are satisfactory,
this
contract.
(b)
The PHA shall make progress payments approximately every 30 days as
the work proceeds, on estimates of work accomplished which meets the
standards of quality established under the contract, as approved by
the Contracting Officer. The PHA may, subject to written
determination and approval of the Contracting Officer, make more
frequent payments to contractors which are
the
PHA may make the remaining payments in full for the work
subsequently completed. If the Contracting Officer subsequently
determines that the Contractor’s performance and progress are
unsatisfactory, the PHA shall reinstate the ten (10) percent (or
other percentage as provided in State law) retainage until such time
as the Contracting Officer determines that performance and
qualified
small businesses.
(c)
Before the first progress payment under this contract, the
Contractor shall furnish, in such detail as requested by the
Contracting Officer, a breakdown of the total contract price showing
the amount included therein for each principal category of the work,
which shall substantiate the payment amount requested in order to
provide a
progress
are satisfactory.
(g)
The Contracting Officer may authorize material delivered on the site
and preparatory work done to be taken into consideration when
computing progress payments.
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HUD-5370 (1/2014)
Material
delivered to the Contractor at locations other than the site may
also be taken into consideration if the Contractor furnishes
satisfactory evidence that (1) it has acquired title to such
material; (2) the material is properly stored in a bonded warehouse,
storage yard, or similar suitable place as may be approved by the
Contracting Officer; (3) the material is insured to cover its full
value; and (4) the material will be used to perform this contract.
Before any progress payment which includes delivered material is
made, the Contractor shall furnish such documentation as the
Contracting Officer may require to assure the protection of the
PHA’s interest in such materials. The Contractor shall remain
responsible for such stored material notwithstanding the transfer of
title
responsibilities
of the parties (e.g., change in the PHA address). All other contract
modifications shall be in the form of supplemental agreements signed
by the
Contractor
and the Contracting Officer.
(c)
When a proposed modification requires the approval of HUD prior to
its issuance (e.g., a change order that exceeds the PHA’s
approved threshold), such modification shall not be effective until
the required approval is received by the PHA.
29.
Changes
(a)
The Contracting Officer may, at any time, without notice
to
the PHA.
to
the sureties, by written order designated or indicated to be a
change order, make changes in the work within the general scope of
the contract including changes:
In
the specifications (including drawings and designs); In
the method or manner of performance of the work;
(h)
All material and work covered by progress payments
made
shall, at the time of payment become the sole property of the PHA,
but this shall not be construed as (1) relieving the Contractor from
the sole responsibility for all material and work upon which
payments have been made or the restoration of any damaged work; or,
(2) waiving the right of the PHA to require the fulfillment of all
of the terms of the contract. In the event the work of the
Contractor has been damaged by other contractors or persons other
than employees of the PHA in the course of their employment, the
Contractor shall restore such damaged work without cost to the PHA
and to seek redress for its damage only from those who directly
(3)
PHA-furnished facilities, equipment, materials,
services,
or site; or,
(4)
Directing the acceleration in the performance of the
caused
it.
work.
(b)
Any other written order or oral order (which, as used in this
paragraph (b), includes direction, instruction, interpretation, or
determination) from the Contracting Officer that causes a change
shall be treated as a change order under this clause; provided, that
the Contractor gives the Contracting Officer written notice stating
(1) the date, circumstances and source of the order and (2) that the
Contractor regards the order as a
(i)
The PHA shall make the final payment due the Contractor
under
this contract after (1) completion and final acceptance of all work;
and (2) presentation of release of all claims against the PHA
arising by virtue of this contract, other than claims, in stated
amounts, that the Contractor has specifically excepted from the
operation of the release. Each such exception shall embrace no more
than one claim, the basis and scope of which shall be clearly
defined. The amounts for such excepted claims shall not be included
in the request for final payment. A release may also be required of
the assignee if the Contractor’s claim to amounts payable
under this contract
change
order.
(c)
Except as provided in this clause, no order, statement or conduct of
the Contracting Officer shall be treated as a change under this
clause or entitle the Contractor to an
equitable
adjustment.
(d)
If any change under this clause causes an increase or
has
been assigned.
decrease
in the Contractor’s cost of, or the time required for the
performance of any part of the work under this contract, whether or
not changed by any such order, the Contracting Officer shall make an
equitable adjustment and modify the contract in writing. However,
except for a adjustment based on defective specifications, no
proposal for any change under paragraph (b) above shall be allowed
for any costs incurred more than 20 days (5 days for oral orders)
before the Contractor gives written notice as required. In the case
of defective specifications for which the PHA is responsible, the
equitable adjustment shall include any increased cost reasonably
incurred by the Contractor in attempting to comply with
(j)
Prior to making any payment, the Contracting Officer may
require
the Contractor to furnish receipts or other evidence of payment from
all persons performing work and supplying material to the
Contractor, if the Contracting Officer determines such evidence is
necessary
to substantiate claimed costs.
(k)
The PHA shall not; (1) determine or adjust any claims for payment or
disputes arising there under between the Contractor and its
subcontractors or material suppliers; or, (2) withhold any moneys
for the protection of the subcontractors or material suppliers. The
failure or refusal of the PHA to withhold moneys from the Contractor
shall in nowise impair the obligations of any surety or sureties
under any bonds furnished under this contract.
the
defective specifications.
(e)
The Contractor must assert its right to an adjustment
28.
Contract Modifications
under
this clause within 30 days after (1) receipt of a written change
order under paragraph (a) of this clause, or (2) the furnishing of a
written notice under paragraph (b) of this clause, by submitting a
written statement describing the general nature and the amount of
the proposal. If the facts justify it, the Contracting Officer may
extend the period for submission. The proposal may be included in
the notice required under paragraph (b) above. No proposal by the
Contractor for an equitable adjustment shall be allowed if asserted
after final
(a)
Only the Contracting Officer has authority to modify any
term
or condition of this contract. Any contract
payment
under this contract.
modification
shall be authorized in writing.
(f)
The Contractor’s written proposal for equitable adjustment
shall be submitted in the form of a lump sum proposal supported with
an itemized breakdown of all increases and decreases in the contract
in at least the following details:
(b)
The Contracting Officer may modify the contract
unilaterally
(1) pursuant to a specific authorization stated
in
a contract clause (e.g., Changes); or (2) for
administrative
matters which do not change the rights or
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(1)
Direct Costs. Materials (list individual items, the
been
so suspended, delayed, or interrupted by any other cause, including
the fault or negligence of the Contractor or for which any equitable
adjustment is provided for or excluded under any other provision of
this contract.
quantity
and unit cost of each, and the aggregate cost); Transportation and
delivery costs associated with materials; Labor breakdowns by hours
or unit costs (identified with specific work to be performed);
Construction equipment exclusively necessary for the change; Costs
of preparation and/ or revision to shop drawings resulting from the
change; Worker’s Compensation and Public Liability Insurance;
Employment taxes under FICA and FUTA; and, Bond Costs when size of
change warrants revision.
Indirect
Costs. Indirect costs may include overhead, general and
administrative expenses, and fringe benefits not normally treated
as direct costs.
Profit.
The amount of profit shall be negotiated and
may
vary according to the nature, extent, and
complexity
of the work required by the change. The allowability of the direct
and indirect costs shall be determined in accordance with the
Contract Cost Principles and Procedures for Commercial Firms in Part
31 of the Federal Acquisition Regulation (48 CFR 1-31), as
implemented by HUD Handbook 2210.18, in effect on the date of this
contract. The Contractor shall not be
(c)
A claim under this clause shall not be allowed (1) for any
costs
incurred more than 20 days before the Contractor shall have notified
the Contracting Officer in writing of the act or failure to act
involved (but this requirement shall not apply as to a claim
resulting from a suspension order); and, (2) unless the claim, in an
amount stated, is asserted in writing as soon as practicable after
the termination of the suspension, delay, or interruption, but not
later than the date of final payment under the contract.
31.
Disputes
allowed
a profit on the profit received by any
(a)
“Claim,” as used in this clause, means a written demand
or written assertion by one of the contracting parties seeking, as a
matter of right, the payment of money in a sum certain, the
adjustment or interpretation of contract terms, or other relief
arising under or relating to the contract. A claim arising under the
contract, unlike a claim relating to the contract, is a claim that
can be resolved under a contract clause that provides for the relief
sought by the claimant. A voucher, invoice, or other routine request
for payment that is not in dispute when submitted is not a claim.
The submission may be converted to a claim by complying with the
requirements of this clause, if it is disputed either as to
liability or amount or is not acted upon in a reasonable time.
subcontractor.
Equitable adjustments for deleted work shall include a credit for
profit and may include a credit for indirect costs. On proposals
covering both increases and decreases in the amount of the contract,
the application of indirect costs and profit shall be on the
net-change in direct costs for the Contractor or subcontractor
performing
the work.
(g)
The Contractor shall include in the proposal its request for time
extension (if any), and shall include sufficient information and
dates to demonstrate whether and to what extent the change will
delay the completion of the
(b)
Except for disputes arising under the clauses entitled
contract
in its entirety.
Labor
Standards - Davis Bacon and Related Acts, herein, all disputes
arising under or relating to this contract, including any claims for
damages for the alleged breach thereof which are not disposed of by
agreement, shall be
(h)
The Contracting Officer shall act on proposals within 30 days after
their receipt, or notify the Contractor of the
resolved
under this clause.
(c)
All claims by the Contractor shall be made in writing and
date
when such action will be taken.
submitted
to the Contracting Officer for a written decision. A claim by the
PHA against the Contractor shall be subject to a written decision by
the Contracting Officer.
(d)
The Contracting Officer shall, within 60 (unless otherwise
indicated) days after receipt of the request, decide the claim or
notify the Contractor of the date by which the
(i)
Failure to reach an agreement on any proposal shall be a
dispute
under the clause entitled Disputes herein. Nothing in this clause,
however, shall excuse the
Contractor
from proceeding with the contract as changed.
(j)
Except in an emergency endangering life or property, no
change
shall be made by the Contractor without a prior order from the
Contracting Officer.
decision
will be made.
(e)
The Contracting Officer’s decision shall be final unless
30.
Suspension of Work
the
Contractor (1) appeals in writing to a higher level in the PHA in
accordance with the PHA’s policy and procedures, (2) refers
the appeal to an independent mediator or arbitrator, or (3) files
suit in a court of competent jurisdiction. Such appeal must be made
within (30 unless otherwise indicated) days after receipt of the
(a)
The Contracting Officer may order the Contractor in
writing
to suspend, delay, or interrupt all or any part of the work of this
contract for the period of time that the Contracting Officer
determines appropriate for the
Contracting
Officer’s decision.
convenience
of the PHA.
(f)
The Contractor shall proceed diligently with performance
(b)
If the performance of all or any part of the work is, for an
unreasonable period of time, suspended, delayed, or interrupted (1)
by an act of the Contracting Officer in the administration of this
contract, or (2) by the Contracting Officer’s failure to act
within the time specified (or within a reasonable time if not
specified) in this contract an adjustment shall be made for any
increase in the cost of performance of the contract (excluding
profit) necessarily caused by such unreasonable suspension, delay,
or interruption and the contract modified in writing accordingly.
However, no adjustment shall be made under this clause for any
suspension, delay, or interruption to the extent that performance
would have
of
this contract, pending final resolution of any request for relief,
claim, appeal, or action arising under or relating to the contract,
and comply with any decision of the Contracting Officer.
32.
Default
(a)
If the Contractor refuses or fails to prosecute the work, or any
separable part thereof, with the diligence that will insure its
completion within the time specified in this contract, or any
extension thereof, or fails to complete said work within this time,
the Contracting Officer may, by written notice to the Contractor,
terminate the right to
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proceed
with the work (or separable part of the work) that has been delayed.
In this event, the PHA may take over the work and complete it, by
contract or otherwise, and may take possession of and use any
materials, equipment, and plant on the work site necessary for
completing the work. The Contractor and its sureties shall be liable
for any damage to the PHA resulting from the Contractor’s
refusal or failure to complete the work within
completion
of the work together with any increased costs
occasioned
the PHA in completing the work.
(c)
If the PHA does not terminate the Contractor’s right to
proceed,
the resulting damage will consist of liquidated damages until the
work is completed or accepted.
34.
Termination for Convenience
the
specified time, whether or not the Contractor’s right to
proceed with the work is terminated. This liability includes any
increased costs incurred by the PHA in completing
(a)
The Contracting Officer may terminate this contract in whole, or in
part, whenever the Contracting Officer determines that such
termination is in the best interest of the PHA. Any such termination
shall be effected by delivery to the Contractor of a Notice of
Termination specifying the extent to which the performance of the
work under the contract is terminated, and the date upon
the
work.
(b)
The Contractor’s right to proceed shall not be terminated or
the Contractor charged with damages under this
clause
if—
(1)
The delay in completing the work arises from
which
such termination becomes effective.
unforeseeable
causes beyond the control and without the fault or negligence of the
Contractor. Examples of such causes include (i) acts of God, or of
the public enemy, (ii) acts of the PHA or other governmental entity
in either its sovereign or contractual capacity, (iii) acts of
another contractor in the performance of a contract with the PHA,
(iv) fires, (v) floods, (vi) epidemics, (vii) quarantine
restrictions, (viii) strikes, (ix) freight embargoes, (x) unusually
severe weather, or (xi) delays of subcontractors or suppliers at any
tier arising from unforeseeable causes beyond the control and
without the fault or negligence of both the Contractor and the
subcontractors or suppliers; and
(2)
The Contractor, within days (10 days unless otherwise indicated)
from the beginning of such delay (unless extended by the Contracting
Officer) notifies the Contracting Officer in writing of the causes
of delay. The Contracting Officer shall ascertain the facts and the
extent of the delay. If, in the judgment of the Contracting Officer,
the findings of fact warrant such action, time for completing the
work shall be extended by written modification to the contract. The
findings of the Contracting Officer shall be reduced to a written
decision which shall be subject to the provisions of
(b)
If the performance of the work is terminated, either in
whole
or in part, the PHA shall be liable to the Contractor for reasonable
and proper costs resulting from such termination upon the receipt by
the PHA of a properly presented claim setting out in detail: (1) the
total cost of the work performed to date of termination less the
total amount of contract payments made to the Contractor; (2) the
cost (including reasonable profit) of settling and paying claims
under subcontracts and material orders for work performed and
materials and supplies delivered to the site, payment for which has
not been made by the PHA to the Contractor or by the Contractor to
the subcontractor or supplier; (3) the cost of preserving and
protecting the work already performed until the PHA or
assignee
takes possession thereof or assumes
responsibility
therefore; (4) the actual or estimated cost of legal and accounting
services reasonably necessary to prepare and present the termination
claim to the PHA; and (5) an amount constituting a reasonable profit
on the
value
of the work performed by the Contractor.
(c)
The Contracting Officer will act on the Contractor’s claim
within days (60 days unless otherwise indicated) of
receipt
of the Contractor’s claim.
(d)
Any disputes with regard to this clause are expressly
the
Disputes clause of this contract.
made
subject to the provisions of the Disputes clause of this contract.
(c)
If, after termination of the Contractor’s right to proceed, it
is determined that the Contractor was not in default, or that the
delay was excusable, the rights and obligations of the parties will
be the same as if the termination had been for convenience of the
PHA.
35.
Assignment of Contract
33.
Liquidated Damages
The
Contractor shall not assign or transfer any interest in this
contract; except that claims for monies due or to become due from
the PHA under the contract may be assigned to a bank, trust company,
or other financial institution. Such assignments of claims shall
only be made with the written concurrence of the Contracting
Officer. If the Contractor is a partnership, this contract shall
inure to the benefit of the surviving or remaining member(s) of such
partnership as approved by the Contracting Officer.
(a)
If the Contractor fails to complete the work within the time
specified
in the contract, or any extension, as specified in the clause
entitled Default of this contract, the Contractor
shall
pay to the PHA as liquidated damages, the sum of Contracting Officer
insert amount] for
$
each
day of delay. If different completion dates are specified in the
contract for separate parts or stages of the work, the amount of
liquidated damages shall be assessed on those parts or stages which
are delayed. To the extent that the Contractor’s delay or
nonperformance is excused under another clause in this contract,
liquidated damages shall not be due the PHA. The Contractor remains
liable for damages caused other than
36.
Insurance
(a)
Before commencing work, the Contractor and each
subcontractor
shall furnish the PHA with certificates of insurance showing the
following insurance is in force and
will
insure all operations under the Contract:
by
delay.
(1)
Workers’ Compensation, in accordance with state or
(b)
If the PHA terminates the Contractor’s right to proceed,
Territorial
Workers’ Compensation laws.
the
resulting damage will consist of liquidated damages until such
reasonable time as may be required for final
(2)
Commercial General Liability with a combined single
than
$
limit
for bodily injury and property damage of not less [Contracting
Officer insert amount]
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per
occurrence to protect the Contractor and each subcontractor against
claims for bodily injury or death and damage to the property of
others. This shall cover the use of all equipment, hoists, and
vehicles
(2)
“Subcontractor” means any supplier, vendor, or firm that
furnishes supplies, materials, equipment, or services to or for the
Contractor or another
subcontractor.
on
the site(s) not covered by Automobile Liability
(b)
The Contractor shall not enter into any subcontract with any
subcontractor who has been temporarily denied participation in a HUD
program or who has been suspended or debarred from participating in
contracting
under
(3) below. If the Contractor has a made” policy, then the
following additional requirements apply: the policy must provide a
“retroactive date” which must be on or before the
“claims-
programs
by any agency of the United States
execution
date of the Contract; and the extended reporting period may not be
less than five years
Government
or of the state in which the work under this
contract
is to be performed.
following
the completion date of the Contract.
(c)
The Contractor shall be as fully responsible for the acts or
omissions of its subcontractors, and of persons either directly or
indirectly employed by them as for the acts or omissions of persons
directly employed by the
(3)
Automobile Liability on owned and non -owned motor vehicles used on
the site(s) or in connection therewith
for
a combined single limit for bodily injury and
property
damage of not less than $
Contractor.
[Contracting
Officer insert amount] per occurrence.
(d)
The Contractor shall insert appropriate clauses in all
(b)
Before commencing work, the Contractor shall furnish the
subcontracts
to bind subcontractors to the terms and conditions of this contract
insofar as they are applicable
PHA
with a certificate of insurance evidencing that Builder’s Risk
(fire and extended coverage) Insurance on all work in place and/or
materials stored at the building site(s), including foundations and
building equipment, is in force. The Builder’s Risk Insurance
shall be for the benefit of the Contractor and the PHA as their
interests may appear and each shall be named in the policy or
policies as an insured. The Contractor in installing equipment
supplied by the PHA shall carry insurance on such equipment from the
time the Contractor takes possession thereof until the Contract work
is accepted by the PHA. The Builder’s Risk Insurance need not
be carried on excavations, piers, footings, or foundations until
such time as work on the superstructure is started. It need not be
carried on landscape work. Policies shall furnish coverage at all
times for the full cash value of all completed construction, as well
as materials in place and/or stored at the site(s), whether or not
partial payment has been made by the PHA. The Contractor may
terminate this insurance on buildings as of the date taken over for
occupancy by the PHA. The Contractor is not required to carry
Builder’s Risk Insurance for modernization work which does not
involve structural alterations or additions and where the PHA’s
existing fire and extended coverage policy can be endorsed to
to
the work of subcontractors.
(e)
Nothing contained in this contract shall create any
contractual
relationship between any subcontractor and the PHA or between the
subcontractor and HUD.
38.
Subcontracting with Small and Minority Firms,
Women’s
Business Enterprise, and Labor Surplus Area Firms
The
Contractor shall take the following steps to ensure
enterprises,
and labor surplus area firms:
(a)
Placing qualified small and minority businesses and
women’s
business enterprises on solicitation lists;
(b)
Ensuring that small and minority businesses and women’s
business enterprises are solicited whenever
they
are potential sources;
(c)
Dividing total requirements, when economically feasible, into
smaller tasks or quantities to permit maximum participation by small
and minority businesses and
women’s
business enterprises;
(d)
Establishing delivery schedules, where the requirements
include
such work.
of
the contract permit, which encourage participation by small and
minority businesses and women’s business
(c)
All insurance shall be carried with companies which are
enterprises;
and
financially
responsible and admitted to do business in the State in which the
project is located. If any such insurance is due to expire during
the construction period, the Contractor (including subcontractors,
as applicable) shall not permit the coverage to lapse and shall
furnish evidence of coverage to the Contracting Officer. All
certificates of insurance, as evidence of coverage, shall provide
that no coverage may be canceled or non-renewed by the insurance
company until at least 30 days prior written notice has been given
to the Contracting Officer.
(e)
Using the services and assistance of the U.S. Small Business
Administration, the Minority Business Development Agency of the U.S.
Department of Commerce, and State and local governmental small
business agencies.
39.
Equal Employment Opportunity
During
the performance of this contract, the Contractor
agrees
as follows:
(a)
The Contractor shall not discriminate against any
employee
or applicant for employment because of race,
37.
Subcontracts
color,
religion, sex, national origin, or handicap.
(b)
The Contractor shall take affirmative action to ensure that
(a)
Definitions. As used in this contract -
applicants
are employed, and that employees are treated during employment
without regard to their race, color, religion, sex, national origin,
or handicap. Such action shall include, but not be limited to, (1)
employment, (2) upgrading, (3) demotion, (4) transfer, (5)
recruitment or recruitment advertising, (6) layoff or termination,
(7) rates of pay or other forms of compensation, and (8) selection
for training, including apprenticeship.
(1)
“Subcontract” means any contract, purchase order, or
other purchase agreement, including modifications and change orders
to the foregoing, entered into by a subcontractor to furnish
supplies, materials, equipment, and services for the performance of
the prime contract or a subcontract.
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that,
whenever possible, subcontracts are awarded to
small business
firms, minority firms, women’s business
(c)
The Contractor shall post in conspicuous places available
(a)
The work to be performed under this contract is subject to the
requirements of section 3 of the Housing and Urban Development Act
of 1968, as amended, 12 U.S.C. 1701u (section 3). The purpose of
section 3 is to ensure that employment and other economic
opportunities generated by HUD assistance or HUD-assisted projects
covered by section 3, shall, to the greatest extent feasible, be
directed to low- and very low-income persons, particularly persons
who are recipients of HUD assistance for
to
employees and applicants for employment the notices to be provided
by the Contracting Officer that explain this
clause.
(d)
The Contractor shall, in all solicitations or advertisements for
employees placed by or on behalf of the Contractor, state that all
qualified applicants will receive consideration for employment
without regard to race, color, religion, sex, national origin, or
handicap.
(e)
The Contractor shall send, to each labor union or
housing.
representative
of workers with which it has a collective bargaining agreement or
other contract or understanding, the notice to be provided by the
Contracting Officer advising the labor union or workers’
representative of the Contractor’s commitments under this
clause, and post copies of the notice in conspicuous places
available to
(b)
The parties to this contract agree to comply with HUD's
regulations
in 24 CFR Part 135, which implement section 3. As evidenced by their
execution of this contract, the parties to this contract certify
that they are under no contractual or other impediment that would
prevent them
from
complying with the Part 135 regulations.
employees
and applicants for employment.
(c)
The contractor agrees to send to each labor organization or
representative of workers with which the contractor has a collective
bargaining agreement or other understanding, if any, a notice
advising the labor organization or workers' representative of the
contractor's commitments under this section 3 clause, and will post
copies of the notice in conspicuous places at the work site where
both employees and applicants for training and employment positions
can see the notice. The notice shall describe the section 3
preference, shall set forth minimum number and job titles subject to
hire, availability of apprenticeship and training positions, the
qualifications for each; and the name and location of the person(s)
taking applications for each of the positions; and the
(f)
The Contractor shall comply with Executive Order 11246,
as
amended, and the rules, regulations, and orders of the
Secretary
of Labor.
(g)
The Contractor shall furnish all information and reports
required
by Executive Order 11246, as amended, Section 503 of the
Rehabilitation Act of 1973, as amended, and by rules, regulations,
and orders of the Secretary of Labor, or pursuant thereto. The
Contractor shall permit access to its books, records, and accounts
by the Secretary of Labor for purposes of investigation to ascertain
compliance with such rules, regulations, and
orders.
(h)
In the event of a determination that the Contractor is not
in
compliance with this clause or any rule, regulation, or order of the
Secretary of Labor, this contract may be canceled, terminated, or
suspended in whole or in part, and the Contractor may be declared
ineligible for further Government contracts, or Federally assisted
construction contracts under the procedures authorized in Executive
Order 11246, as amended. In addition, sanctions may be imposed and
remedies invoked against the Contractor as provided in Executive
Order 11246, as amended, the rules, regulations, and orders of the
Secretary of Labor,
anticipated
date the work shall begin.
(d)
The contractor agrees to include this section 3 clause in
every
subcontract subject to compliance with regulations in 24 CFR Part
135, and agrees to take appropriate action, as provided in an
applicable provision of the subcontract or in this section 3 clause,
upon a finding that the subcontractor is in violation of the
regulations in 24 CFR Part 135. The contractor will not subcontract
with any subcontractor where the contractor has notice or knowledge
that the subcontractor has been found in
or
as otherwise provided by law.
violation
of the regulations in 24 CFR Part 135.
(i)
The Contractor shall include the terms and conditions of
(e)
The contractor will certify that any vacant employment
this
clause in every subcontract or purchase order unless exempted by the
rules, regulations, or orders of the Secretary of Labor issued under
Executive Order 11246, as amended, so that these terms and
conditions will be binding upon each subcontractor or vendor. The
Contractor shall take such action with respect to any subcontract or
purchase order as the Secretary of Housing and Urban Development or
the Secretary of Labor may direct as a means of enforcing such
provisions, including sanctions for noncompliance; provided that if
the Contractor becomes involved in, or is threatened with,
litigation with a subcontractor or vendor as a result of such
direction, the Contractor may request the United States to enter
into the litigation to protect the
positions,
including training positions, that are filled (1) after the
contractor is selected but before the contract is executed, and (2)
with persons other than those to whom the regulations of 24 CFR Part
135 require employment opportunities to be directed, were not filled
to circumvent the contractor's obligations under 24 CFR Part 135.
(f)
Noncompliance with HUD's regulations in 24 CFR Part
135
may result in sanctions, termination of this contract for default,
and debarment or suspension from future
HUD
assisted contracts.
interests
of the United States.
(g)
With respect to work performed in connection with section 3 covered
Indian housing assistance, section 7(b) of the Indian
Self-Determination and Education Assistance Act (25 U.S.C. 450e)
also applies to the work to be performed under this contract.
Section 7(b) requires that to the greatest extent feasible (i)
preference and opportunities for training and employment shall be
given to Indians, and (ii) preference in the award of contracts and
subcontracts shall be given to Indian organizations and Indian-owned
Economic Enterprises. Parties to this contract that are subject to
the provisions of section 3 and section 7(b)agree to comply with
section 3 to the maximum extent feasible, but not in derogation of
compliance with section 7(b).
(j)
Compliance with the requirements of this clause shall be
to
the maximum extent consistent with, but not in derogation of,
compliance with section 7(b) of the Indian Self-Determination and
Education Assistance Act and the Indian Preference clause of this
contract.
40.
Employment, Training, and Contracting
Opportunities
for Low-Income Persons, Section 3 of the Housing and Urban
Development Act of 1968.
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HUD-5370 (1/2014)
41.
Interest of Members of Congress
(a)
The PHA, HUD, or Comptroller General of the United
No
member of or delegate to the Congress of the United States of
America shall be admitted to any share or part of this contract or
to any benefit that may arise therefrom.
States,
or any of their duly authorized representatives shall, until 3 years
after final payment under this contract, have access to and the
right to examine any of the Contractor’s directly pertinent
books, documents, papers, or other records involving transactions
related to this contract for the purpose of making audit,
examination,
42.
Interest of Members, Officers, or Employees and Former Members,
Officers, or Employees
excerpts,
and transcriptions.
No
member, officer, or employee of the PHA, no member of the governing
body of the locality in which the project is situated, no member of
the governing body of the locality in which the PHA was activated,
and no other public official of such locality or localities who
exercises any functions or responsibilities with respect to the
project, shall, during his or her tenure, or for one year
thereafter, have any interest, direct or indirect, in this contract
or the proceeds thereof.
(b)
The Contractor agrees to include in first-tier subcontracts under
this contract a clause substantially the same as paragraph (a)
above. “Subcontract,” as used in this clause, excludes
purchase orders not exceeding
$10,000.
43.
Limitations on Payments made to Influence Certain Federal Financial
Transactions
(c)
The periods of access and examination in paragraphs (a) and (b)
above for records relating to (1) appeals under the Disputes clause
of this contract, (2) litigation or settlement of claims arising
from the performance of this contract, or (3) costs and expenses of
this contract to which the PHA, HUD, or Comptroller General or any
of their duly authorized representatives has taken exception shall
continue until disposition of such appeals, litigation, claims, or
exceptions.
(a)
The Contractor agrees to comply with Section 1352 of
Title
31, United States Code which prohibits the use of Federal
appropriated funds to pay any person for influencing or attempting
to influence an officer or employee of any agency, a Member of
Congress, and officer or employee of Congress, or an employee of a
Member of Congress in connection with any of the following covered
Federal actions: the awarding of any Federal contract; the making of
any Federal grant; the making of any Federal loan; the entering into
of any cooperative agreement; or the modification of any
46.
Labor Standards - Davis-Bacon and Related Acts
If
the total amount of this contract exceeds $2,000, the Federal labor
standards set forth in the clause below shall apply to the
development or construction work to be
performed
under the contract.
(a)
Minimum Wages.
Federal
contract, grant, loan, or cooperative agreement.
(1)
All laborers and mechanics employed under this contract in the
development or construction of the project(s) involved will be paid
unconditionally and not less often than once a week, and without
subsequent deduction or rebate on any account (except such payroll
deductions as are permitted by regulations issued by the Secretary
of Labor under the Copeland Act (29 CFR Part 3)), the full amount of
wages and bona fide fringe benefits (or cash equivalents thereof)
due at time of payment computed at rates not less than those
contained in the wage determination of the Secretary of Labor which
is attached hereto and made a part hereof, regardless of any
contractual relationship which may be alleged to exist between the
Contractor and such laborers and mechanics. Contributions made or
costs reasonably anticipated for bona fide fringe benefits under
Section 1(b)(2) of the Davis-Bacon Act on behalf of laborers or
mechanics are considered wages paid to such laborers or mechanics,
subject to the provisions of 29 CFR 5.5(a)(1)(iv); also, regular
contributions made or costs incurred for more than a weekly period
(but not less often than quarterly) under plans, funds, or programs
which cover the regular weekly period, are deemed to be
constructively made or incurred during such weekly period. Such
laborers and mechanics shall be paid the appropriate wage rate and
fringe benefits in the wage determination for the classification of
work actually performed, without regard to skill, except as provided
in 29 CFR 5.5(a)(4). Laborers or mechanics performing
(b)
The Contractor further agrees to comply with the
requirement
of the Act to furnish a disclosure (OMB Standard Form LLL,
Disclosure of Lobbying Activities) if any funds other than Federal
appropriated funds (including profit or fee received under a covered
Federal transaction) have been paid, or will be paid, to any person
for influencing or attempting to influence an officer or employee of
any agency, a Member of Congress, an officer or employee of
Congress, or an employee of a Member of Congress in connection with
a Federal contract, grant, loan, or cooperative agreement.
44.
Royalties and Patents
The
Contractor shall pay all royalties and license fees. It shall defend
all suits or claims for infringement of any patent rights and shall
save the PHA harmless from loss on account thereof; except that the
PHA shall be responsible for all such loss when a particular design,
process or the product of a particular manufacturer or manufacturers
is specified and the Contractor has no reason to believe that the
specified design, process, or product is an infringement. If,
however, the Contractor has reason to believe that any design,
process or product specified is an infringement of a patent, the
Contractor shall promptly notify the Contracting Officer. Failure to
give such notice shall make the Contractor responsible for resultant
loss.
work
in more than one classification may be
45.
Examination and Retention of Contractor’s Records
compensated
at the rate specified for each classification for the time actually
worked therein; provided, that the employer’s payroll records
accurately set forth the time spent in each classification in which
work is performed. The wage determination (including any additional
classification and wage rates conformed under 29 CFR 5.5(a)(1)(ii)
and the Davis-Bacon poster (WH-1321) shall
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form
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be
posted at all times by the Contractor and its subcontractors at the
site of the work in a prominent and accessible place where it can be
easily seen by the
amount
of any costs reasonably anticipated in providing bona fide fringe
benefits under a plan or program; provided, that the Secretary of
Labor has found, upon the written request of the Contractor, that
the applicable standards of the Davis-Bacon Act have been met. The
Secretary of Labor may require the Contractor to set aside in a
separate account assets for the meeting of obligations under the
plan or
workers.
(2)
(i) Any class of laborers or mechanics, including
helpers,
which is not listed in the wage
determination
and which is to be employed under the contract shall be classified
in conformance with the wage determination. HUD shall approve an
additional classification and wage rate and fringe benefits therefor
only when all the following criteria have been met: (A) The work to
be performed by the classification requested is not performed by a
classification in the wage determination; and (B) The classification
is utilized in the area by the construction industry; and (C) The
proposed wage rate, including any bona fide fringe benefits, bears a
reasonable relationship to the wage rates contained in the wage
program.
determination.
(b)
Withholding of funds. HUD or its designee shall, upon its own action
or upon written request of an authorized representative of the
Department of Labor, withhold or cause to be withheld from the
Contractor under this contract or any other Federal contract with
the same prime Contractor, or any other Federally-assisted contract
subject to Davis-Bacon prevailing wage requirements, which is held
by the same prime Contractor, so much of the accrued payments or
advances as may be considered necessary to pay laborers and
mechanics, including apprentices, trainees, and helpers, employed by
the Contractor or any subcontractor the full amount of wages
required by the contract. In the event of failure to pay any laborer
or mechanic, including any apprentice, trainee, or helper, employed
or working in the construction or development of the project, all or
part of the wages required by the contract, HUD or its designee may,
after written notice to the Contractor, take such action as may be
necessary to cause the suspension of any further payment, advance,
or guarantee of funds until such violations have ceased. HUD or its
designee may, after written notice to the Contractor, disburse such
amounts withheld for and on account of the Contractor or
subcontractor to the
(ii)
If the Contractor and the laborers and mechanics
to
be employed in the classification (if known), or their
representatives, and HUD or its designee agree on the classification
and wage rate (including the amount designated for fringe benefits
where appropriate), a report of the action taken shall be sent by
HUD or its designee to the Administrator of the Wage and Hour
Division, Employee Standards Administration, U.S. Department of
Labor, Washington, DC 20210.
The
Administrator, or an authorized
representative,
will approve, modify, or disapprove every additional classification
action within 30 days of receipt and so advise HUD or its designee
or will notify HUD or its designee within the 30-day period that
additional time is necessary.
respective
employees to whom they are due.
(c)
Payrolls and basic records.
(1)
Payrolls and basic records relating thereto shall be
(iii)
In the event the Contractor, the laborers or
maintained
by the Contractor during the course of the work and preserved for a
period of three years thereafter for all laborers and mechanics
working in the construction or development of the project. Such
records shall contain the name, address, and social security number
of each such worker, his or her correct classification, hourly rates
of wages paid (including rates of contributions or costs anticipated
for bona fide fringe benefits or cash equivalents thereof of the
types described in section 1(b)(2)(B) of the Davis-Bacon Act), daily
and weekly number of hours worked, deductions made, and actual wages
paid. Whenever the Secretary of Labor has found, under 29 CFR
5.5(a)(1)(iv), that the wages of any laborer or mechanic include the
amount of costs reasonably anticipated in providing benefits under a
plan or program described in section 1(b)(2)(B) of the Davis-Bacon
Act, the Contractor shall maintain records which show that the
commitment to provide such benefits is enforceable, that the plan or
program is financially responsible, and that the plan or program has
been communicated in writing to the laborers or mechanics affected,
and records which show the costs anticipated or the actual cost
incurred in providing such benefits. Contractors employing
apprentices or trainees under approved programs shall maintain
written evidence of the registration of apprenticeship programs and
certification of trainee programs, the registration of the
apprentices and trainees, and the ratios and wage rates prescribed
in the applicable programs.
mechanics
to be employed in the classification or their representatives, and
HUD or its designee do not agree on the proposed classification and
wage rate (including the amount designated for fringe benefits,
where appropriate), HUD or its designee shall refer the questions,
including the views of all interested parties and the recommendation
of HUD or its designee, to the Administrator of the Wage and Hour
Division for determination. The Administrator, or an authorized
representative, will issue a determination within 30 days of receipt
and so advise HUD or its designee or will notify HUD or its designee
within the 30-day period that
additional
time is necessary.
(iv)
The wage rate (including fringe benefits where
appropriate)
determined pursuant to
subparagraphs
(a)(2)(ii) or (iii) of this clause shall be paid to all workers
performing work in the classification under this contract from the
first day
on
which work is performed in classification.
(3)
Whenever the minimum wage rate prescribed in the
contract
for a class of laborers or mechanics includes a fringe benefit which
is not expressed as an hourly rate, the Contractor shall either pay
the benefit as stated in the wage determination or shall pay another
bona fide fringe benefit or an hourly cash equivalent
thereof.
(4)
If the Contractor does not make payments to a trustee
or
other third person, the Contractor may consider as part of the wages
of any laborer or mechanic the
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(2)
(i) The Contractor shall submit weekly for each week
make
such records available may be grounds for debarment action pursuant
to 29 CFR 5.12.
in
which any contract work is performed a copy of
all
payrolls to the Contracting Officer for
(d)
(1) Apprentices. Apprentices will be permitted to work at
transmission
to HUD or its designee. The payrolls submitted shall set out
accurately and completely all of the information required to be
maintained under subparagraph (c)(1) of this clause. This
information may be submitted in any form desired. Optional Form
WH-347 (Federal Stock Number 029-005-00014-1) is available for this
purpose and may be purchased from the Superintendent of Documents,
U.S. Government Printing Office, Washington, D.C. 20402. The
Contractor is responsible for the submission of copies of payrolls
by all subcontractors. (Approved by the Office of Management and
Budget under OMB
less
than the predetermined rate for the work they performed when they
are employed pursuant to and individually registered in a bona fide
apprenticeship program registered with the U.S. Department of Labor,
Employment and Training Administration, Office of Apprenticeship and
Training, Employer and
Labor
Services (OATELS), or with a State
Apprenticeship
Agency recognized by OATELS, or if a person is employed in his or
her first 90 days of probationary employment as an apprentice in
such an apprenticeship program, who is not individually registered
in the program, but who has been certified by OATELS or a State
Apprenticeship Agency (where
Control
Number 1214-0149.)
appropriate)
to be eligible for probationary
(ii)
Each payroll submitted shall be accompanied by a
employment
as an apprentice. The allowable ratio of apprentices to journeymen
on the job site in any craft classification shall not be greater
than the ratio permitted to the Contractor as to the entire work
force under the registered program. Any worker listed on a payroll
at an apprentice wage rate, who is not registered or otherwise
employed as stated in this paragraph, shall be paid not less than
the applicable wage rate on the wage determination for the
classification of work actually performed. In addition, any
apprentice performing work on the job site in excess of the ratio
permitted under the registered program shall be paid not less than
the applicable wage rate on the wage determination for the work
actually performed. Where a contractor is performing construction on
a project in a locality other than that in which its program is
registered, the ratios and wage rates (expressed in percentages of
the journeyman’s
“Statement
of Compliance,” signed by the Contractor or subcontractor or
his or her agent who pays or supervises the payment of the persons
employed under the contract and shall
certify
the following:
That
the payroll for the payroll period contains the information
required to be maintained under paragraph (c) (1) of this clause
and that such information is correct and complete;
That
each laborer or mechanic (including each helper, apprentice, and
trainee) employed on the contract during the payroll period has
been paid the full weekly wages earned, without rebate, either
directly or indirectly, and that no deductions have been made
either directly or indirectly from the full wages earned, other
than permissible deductions as set forth in 29
CFR
Part 3; and
hourly
rate) specified in the Contractor’s or
(C)
That each laborer or mechanic has been paid not less than the
applicable wage rates and fringe benefits or cash equivalents for
the classification of work performed, as specified in the applicable
wage determination
subcontractor’s
registered program shall be observed. Every apprentice must be paid
at not less than the rate specified in the registered program for
the apprentice’s level of progress, expressed as a percentage
of the journeyman hourly rate specified in the applicable wage
determination. Apprentices shall be paid fringe benefits in
accordance with the provisions of the apprenticeship program. If the
apprenticeship program does not specify fringe benefits, apprentices
must be paid the full amount of fringe benefits listed on the wage
determination for the applicable classification. If the
Administrator of the Wage and Hour Division determines that a
different practice prevails for the applicable apprentice
classification, fringes shall be paid in accordance with that
determination. In the event OATELS, or a State Apprenticeship Agency
recognized by OATELS, withdraws approval of an apprenticeship
program, the Contractor will no longer be permitted to utilize
apprentices at less than the applicable predetermined rate for the
work performed until an acceptable
incorporated
into the contract.
(iii)
The weekly submission of a properly executed certification set forth
on the reverse side of
Optional
Form WH-347 shall satisfy the
requirements
for submission of the “Statement of Compliance” required
by subparagraph (c)(2)(ii) of
this
clause.
(iv)
The falsification of any of the above certifications
may
subject the Contractor or subcontractor to civil or criminal
prosecution under Section 1001 of Title 18 and Section 3729 of Title
31 of the United
States
Code.
(3)
The Contractor or subcontractor shall make the
records
required under subparagraph (c)(1) available for inspection,
copying, or transcription by authorized representatives of HUD or
its designee, the Contracting Officer, or the Department of Labor
and shall permit such representatives to interview employees during
working hours on the job. If the Contractor or subcontractor fails
to submit the required records or to make them available, HUD or
program
is approved.
(2)
Trainees. Except as provided in 29 CFR 5.16,
its
designee may, after written notice to the
trainees
will not be permitted to work at less than the predetermined rate
for the work performed unless they are employed pursuant to and
individually registered in a program which has received prior
approval, evidenced by formal certification by the U.S. Department
of Labor, Employment and Training Administration. The ratio of
trainees to journeymen on the job site shall not be greater than
permitted under
Contractor,
take such action as may be necessary to cause the suspension of any
further payment, advance, or guarantee of funds. Furthermore,
failure to submit the required records upon request or to
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HUD-5370 (1/2014)
the
plan approved by the Employment and Training Administration. Every
trainee must be paid at not less than the rate specified in the
approved program for the trainee’s level of progress,
expressed as a percentage of the journeyman hourly rate specified in
the applicable wage determination. Trainees shall be paid fringe
benefits in accordance with the provisions of the trainee program.
If the trainee program does not mention fringe benefits, trainees
shall be paid the full amount of fringe benefits listed in the wage
determination unless the Administrator of the Wage and Hour Division
determines that there is an apprenticeship program associated with
the corresponding journeyman wage rate in the wage determination
which provides for less than full fringe benefits for apprentices.
Any employee listed on the payroll at a trainee rate who is not
registered and participating in a training plan approved by the
Employment and Training Administration shall be paid not less than
the applicable wage rate in the wage determination for the
classification of work actually performed. In addition, any trainee
performing work on the job site in excess of the ratio permitted
under the registered program shall be paid not less than the
applicable wage rate in the wage determination for the work actually
performed. In the event the Employment and Training Administration
withdraws approval of a training program, the Contractor will no
longer be permitted to utilize trainees at less than the applicable
predetermined rate for the work performed
(2)
No part of this contract shall be subcontracted to any
person
or firm ineligible for award of a United States Government contract
by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR
5.12(a)(1).
(3)
The penalty for making false statements is prescribed
in
the U. S. Criminal Code, 18 U.S.C. 1001.
(j)
Contract Work Hours and Safety Standards Act. As used
in
this paragraph, the terms “laborers” and “mechanics”
include
watchmen and guards.
(1)
Overtime requirements. No contractor or
subcontractor
contracting for any part of the contract work which may require or
involve the employment of laborers or mechanics, including watchmen
and guards, shall require or permit any such laborer or mechanic in
any workweek in which the individual is employed on such work to
work in excess of 40 hours in such workweek unless such laborer or
mechanic receives compensation at a rate not less than one and
one-half times the basic rate of pay for all hours
worked
in excess of 40 hours in such workweek.
(2)
Violation; liability for unpaid wages; liquidated
damages.
In the event of any violation of the provisions set forth in
subparagraph (j)(1) of this clause, the Contractor and any
subcontractor responsible therefor shall be liable for the unpaid
wages.
In addition, such Contractor and
until
an acceptable program is approved.
subcontractor
shall be liable to the United States (in the case of work done under
contract for the District of Columbia or a territory, to such
District or to such territory), for liquidated damages. Such
liquidated damages shall be computed with respect to each individual
laborer or mechanic (including watchmen and guards) employed in
violation of the provisions set forth in subparagraph (j)(1) of this
clause, in the sum of $10 for each calendar day on which such
individual was required or permitted to work in excess of the
standard workweek of 40 hours without payment of the overtime wages
required by provisions set forth in subparagraph (j)(1) of this
(3)
Equal employment opportunity. The utilization of
apprentices,
trainees, and journeymen under this clause shall be in conformity
with the equal employment opportunity requirements of Executive
Order
11246, as amended, and 29 CFR Part 30.
(e)
Compliance with Copeland Act requirements. The
Contractor
shall comply with the requirements of 29 CFR Part 3, which are
hereby incorporated by reference in this
contract.
clause.
(f)
Contract termination; debarment. A breach of this contract clause
may be grounds for termination of the contract and for debarment as
a Contractor and a subcontractor as provided in 29 CFR 5.12.
(3)
Withholding for unpaid wages and liquidated
(g)
Compliance with Davis-Bacon and related Act requirements. All
rulings and interpretations of the Davis-
damages.
HUD or its designee shall upon its own action or upon written
request of an authorized representative of the Department of Labor
withhold or cause to be withheld, from any moneys payable on account
of work performed by the Contractor or subcontractor under any such
contract or any Federal contract with the same prime Contractor, or
any other Federally-assisted contract subject to the Contract Work
Hours and Safety Standards Act, which is held by the same prime
Contractor, such sums as may be determined to be necessary to
satisfy any liabilities of such Contractor or subcontractor for
unpaid wages and liquidated damages as provided in the provisions
set forth in subparagraph (j)(2) of this clause. (k)
Subcontracts. The Contractor or subcontractor shall insert
in
any subcontracts all the provisions contained in this
clause,
and such other clauses as HUD or its designee
may
by appropriate instructions require, and also a
clause
requiring the subcontractors to include these
provisions
in any lower tier subcontracts. The prime
Contractor
shall be responsible for the compliance by any
subcontractor
or lower tier subcontractor with all these
provisions.
Bacon
and related Acts contained in 29 CFR Parts 1, 3, and 5 are herein
incorporated by reference in this
contract.
(h)
Disputes concerning labor standards. Disputes arising out of the
labor standards provisions of this clause shall not be subject to
the general disputes clause of this contract. Such disputes shall be
resolved in accordance with the procedures of the Department of
Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the
meaning of this clause include disputes between the Contractor (or
any of its subcontractors) and the PHA, HUD, the U.S. Department of
Labor, or the employees or their
representatives.
(i)
Certification of eligibility.
(1)
By entering into this contract, the Contractor certifies that
neither it (nor he or she) nor any person or firm who has an
interest in the Contractor’s firm is a person or firm
ineligible to be awarded contracts by the United States Government
by virtue of section 3(a) of the Davis-Bacon Act or 29 CFR
5.12(a)(1).
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form
HUD-5370 (1/2014)
47.
Non-Federal Prevailing Wage Rates
(a)
Any prevailing wage rate (including basic hourly rate and
any
fringe benefits), determined under State or tribal law to be
prevailing, with respect to any employee in any trade or position
employed under the contract, is inapplicable to the contract and
shall not be enforced against the Contractor or any subcontractor,
with respect to employees engaged under the contract whenever
such
non-Federal prevailing wage rate exceeds:
(1)
The applicable wage rate determined by the Secretary of Labor
pursuant to the Davis-Bacon Act (40 U.S.C. 3141 et seq.) to be
prevailing in the locality with
respect
to such trade;
(b)
An applicable apprentice wage rate based thereon
specified
in an apprenticeship program registered with the U.S. Department of
Labor (DOL) or a DOL-
recognized
State Apprenticeship Agency; or
(c)
An applicable trainee wage rate based thereon specified in a
DOL-certified trainee program.
48.
Procurement of Recovered Materials.
(a)
In accordance with Section 6002 of the Solid Waste
Disposal
Act, as amended by the Resource Conservation and Recovery Act, the
Contractor shall procure items designated in guidelines of the
Environmental Protection Agency (EPA) at 40 CFR Part 247 that
contain the highest percentage of recovered materials practicable,
consistent with maintaining a satisfactory level of competition. The
Contractor shall procure items designated in the EPA guidelines that
contain the highest percentage of recovered materials practicable
unless the Contractor determines that such items: (1) are not
reasonably available in a reasonable period of time; (2) fail to
meet reasonable performance standards, which shall be determined on
the basis of the guidelines of the National Institute of Standards
and Technology, if applicable to the item; or (3) are only available
at an
unreasonable
price.
(b)
Paragraph (a) of this clause shall apply to items
purchased
under this contract where: (1) the
Contractor
purchases in excess of $10,000 of the item under this contract; or
(2) during the preceding Federal fiscal year, the Contractor: (i)
purchased any amount of the items for use under a contract that was
funded with Federal appropriations and was with a Federal agency or
a State agency or agency of a political subdivision of a State; and
(ii) purchased a total of in excess of $10,000 of the item both
under and outside that contract.
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form
HUD-5370 (1/2014)
| File Type | application/vnd.openxmlformats-officedocument.wordprocessingml.document |
| Author | Shelton, Thomas |
| File Modified | 0000-00-00 |
| File Created | 2021-01-24 |
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